Madras High Court

Vennila vs N.Gokulakannan on 7 August, 2023

                                                                                C.M.A.No.1656 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 07.08.2023

                                                         CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                   C.M.A. No. 1656 of 2022

                     1.Vennila
                     2.Minor Gobika
                     3.Minor Murugan
                     4.Arumugam                                               ... Appellants

                                                           Versus

                     1.N.Gokulakannan

                     2.The Branch Manager,
                       Oriental Insurance Company Limited,
                       Branch Office, No.3-L,
                       Sidda Veerappa Chetty Street,
                       Dharmapuri.                                           ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, seeking to set aside the judgment and decree dated
                     27.04.2019 passed in M.C.O.P. No.69 of 2017, by the Motor Accident
                     Claims Tribunal, Sub Court, Uthangarai.


                                  For Appellants         : Mr.S.P.Yuvaraj
                                  For R1                 : No Appearance
                                  For R2                 : Mr.M.J.Vijayaraghavan



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                                                                                  C.M.A.No.1656 of 2022

                                                          JUDGMENT

This appeal has been filed by the appellants/claimants challenging

the compensation awarded by the Tribunal in M.C.O.P.No.69 of 2017,

dated 27.04.2019.

2.The claim petition was filed stating that on 01.10.2016, at about

7.10 a.m., the deceased Tamilarasan was travelling as pillion rider in the

Hero Honda Super Splendor Motor cycle bearing Registration No. TN 23

AQ 6392. The rider of the motor cycle was riding the vehicle slowly and

cautiously by observing the rules. While so, when they were proceeding

at Chinnappan Erikkarai, the Taras Lorry bearing Reg.No.TN AY 1766

was driven by its driver in a rash and negligent manner and hit against

the motorcycle. Due the said accident, the deceased Tamilarasan fell

down and the right front wheel of the lorry ran over the hip and both legs

of the deceased. Thus, the appellants are entitled for compensation.

3.The 1st respondent/owner of the offending vehicle remained ex-

parte before the Tribunal.

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C.M.A.No.1656 of 2022

4.The 2nd respondent/Insurance Company filed counter denying all

the averments made in the claim petition and stated that the rider of the

two wheeler did not possess valid driving license at the time of accident.

Hence, the 2nd respondent is not liable to pay any compensation to the

appellants. In any case, the compensation claimed is excessive and

prayed for dismissal of the claim petition.

5.Before the Tribunal, the appellants/claimants examined two

witnesses and marked Ex.P.1 to Ex.P.21 on their side. On behalf of the

2nd respondent/Insurance Company, no witness was examined and no

document was marked.

6.The Tribunal after considering the oral and documentary

evidence had held that the accident occurred due to rash and negligent

driving by the driver of the lorry and being the insurer of the 1 st

respondent's lorry, directed the 2nd respondent/Insurance Company to pay

a sum of Rs.14,74,000/- to the appellants/claimants.

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C.M.A.No.1656 of 2022

7.Aggrieved over the award passed by the Tribunal, the

appellants/claimants filed the present appeal seeking for enhancement of

compensation.

8.Learned counsel appearing for the appellants submitted that for

an accident that took place in the year 2016, the Tribunal had taken

meagre notional income of Rs.8,000/- per month though the appellants

had established that the deceased was running a mutton shop. The

Tribunal has not awarded compensation under the head loss of love and

affection for the minor children and the father of the deceased. Further,

the learned counsel submitted that the Tribunal taken 25% towards future

prospects and applied multiplier 15, which are erroneous. The Tribunal

ought to have granted 40% enhancement towards future prospects and

ought to have applied 16 multiplier and hence, prayed for enhancement

of compensation.

9.Per contra, learned counsel appearing for the 2nd

respondent/Insurance Company submitted that appellants have not

produced any proof for the income of the deceased. In such

circumstances, the Tribunal rightly taken the monthly income of the https://www.mhc.tn.gov.in/judis

C.M.A.No.1656 of 2022

deceased as Rs.8,000/-. Further, he relied upon the judgment of the

Hon'ble Supreme Court in the case of Chandra @ Chanda @

Chandraram and another vs. Mukesh Kumar Yadav and others

reported in 2021 (2) TN MAC 498 (SC), wherein the Hon'ble Supreme

Court taken Rs.8,000/- as notional income of the driver for the accident

took place in the year 2016 and he submitted that there is no reason to

interfere with the compensation awarded by the Tribunal and prayed for

dismissal of the appeal.

10.The only question arises in the present appeal is whether the

compensation awarded by the Tribunal is just and reasonable.

11.The learned counsel appearing for the 2nd respondent/Insurance

Company relying upon the aforesaid judgment of the Hon'ble Supreme

Court submitted that the notional income fixed by the Tribunal was just

and reasonable. This Court is of the view that the notional income has to

be fixed based on the facts and circumstance of each case and there

cannot be any standard formula. In the present case, the appellants have

established that the deceased was running a mutton shop and he was aged

about 32 years at the time of accident. Considering the age, avocation, https://www.mhc.tn.gov.in/judis

C.M.A.No.1656 of 2022

number of dependants and the year of accident, this Court is of the view

that it would be just and reasonable to fix the notional income of the

deceased as Rs.12,000/- per month. The deceased was entitled for 40%

future prospects and the correct multiplier applicable is 16. Since there

are four dependents, 1/4th has to be deducted towards personal expenses.

Therefore, the award of compensation under the head loss of income or

dependency has to be as follows:

Rs.12,000/- + 4,800 (40% of 12,000) X 12 X 16 X 3/4 =

Rs.24,19,200/-

12.Further, it is seen that the appellants 2 to 4 have not been

awarded compensation under the head loss of love and affection. They

are entitled to Rs.40,000/- each towards loss of love and affection. The

amount awarded by the Tribunal under other heads are just and

reasonable. Thus, the compensation awarded by the Tribunal is modified

as follows:





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                                                                                      C.M.A.No.1656 of 2022


                        S.         Description          Amount            Amount            Award
                        No                             awarded by       awarded by       confirmed or
                                                        Tribunal         this Court      enhanced or
                                                          (Rs)              (Rs)           granted
                        1.         Loss of                14,04,000        24,19,200       Enhanced
                                   dependency
                        2.         Loss of                   40,000          40,000       Confirmed
                                   Consortium
                        3.         Loss of Estate            15,000          15,000       Confirmed
                        4.         Funeral Expenses          15,000          15,000        Confirmed
                        5.         Loss of love and                 -       1,20,000        Granted
                                   affection for
                                   appellants 2 to 4
                                   Total                  14,74,000        26,09,200     Enhanced by
                                                                                        Rs.11,35,200/-

13.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.14,74,000/- is hereby enhanced to Rs.26,09,200/- together with

interest at 7.5% per annum (excluding the default period, if any) from the

date of petition till the date of deposit. The 2nd respondent/Insurance

Company is directed to deposit the award amount now determined by this

Court along with interest and costs, less the amount already deposited, if

any, within a period of four (4) weeks from the date of a receipt of copy

of this Judgment. On such deposit the 4th appellant is entitled to withdraw

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C.M.A.No.1656 of 2022

a sum of Rs.2,00,000/- and the appellants 1 to 3 are entitled to share the